Undermining the Consensus-Building and List-Based Standards in Export Controls: What the US Export Controls Act Means to the Global Export Control Regime

Abstract

ABSTRACT On 13 August 2018, US President Donald Trump signed a legislation called the ‘Export Controls Act of 2018’ (ECA) that is important for reinvigorating the export control regime in the USA. This paper argues that contents of the ECA will not only impact the USA but also the way that the ECA is structured will potentially have a long-lasting influence on international export control regimes and the role that export controls play in international trade. International export control regimes were established post-World War II as a trade measure to pursue common strategic and national security goals among allied countries. Due to the sensitive nature of national security issues, international export control agreements were structured as non-binding agreements that heavily relied on the consensus of participating countries in formulating export control lists that the participating countries could then adopt in their domestic regulations. The cohesiveness of the global export control regimes has been based on the cornerstones of the consensus-building and list-based standards. The USA established its export control regimes to complement these international export control regimes and has been a strong proponent of requesting countries to adopt the international export control lists into domestic regulations. With the passage of the ECA, the infusion of economic policy considerations such as maintaining the USA’s technological leadership through adding a category of emerging and foundational technology has changed the long-standing export control narrative. Through the changes made to the US ECA, the scope of national security subject to export control regimes has expanded from being focused on military-oriented goods and technology into one that now includes commercial technology. While the changes made through the ECA serve to protect the USA’s technological interests, the statute could also undermine important elements of the global export control regime that the international community has established in the past seventy years post-World War II.